Category: Citizenship and Immigration

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Second Class Citizenship in Canada: through the Eyes of a Second Class Citizen

“It’s official – second class citizenship goes into effect.” – British Columbia Civil Liberties Association (“BCCLA”), regarding Bill C-24 (now law). Strong words. I am always skeptical of strong words. More than half the time, they are hyperbole intended to deceive. I was skeptical of these words, too. So I went straight to the source: the Citizenship Act, RSC, 1985, c C-29 [Citizenship Act]. It turned out that, in my humble opinion, at least, the BCCLA is right to call the new regime dual class citizenship, and it is right to, together with the Canadian Association of Refugee Lawyers (“CARL”), launch...

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No Clarification on Extradition: MM v United States of America

In MM v United States of America, 2015 SCC 62 [MM], both the public and the Bench were sharply divided on whether to extradite a mother, MM. The U.S. sought extradition of MM to face child abduction charges in the state of Georgia. MM’s numerous supporters see her as a mother that came to her children’s aid after they ran away from their abusive father. MM has received public support from the BC Civil Liberties Association, an intervener at the Supreme Court of Canada (“SCC”), Women Who Choose to Live, the New Democratic Party’s Immigration, Refugee and Citizenship Critic, Jenny Kwan...

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The Expansion of “Humanitarian and Compassionate Grounds”: Kanthasamy v Canada

The recent Supreme Court of Canada (“SCC”) decision in Jeyakannan Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] is an exciting and welcome development in immigration and refugee law as it broadens the scope and definition of humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, SC 2001, c 27, s. 25(1) [Act]. Not only did the Court note that humanitarian and compassionate considerations should include the best interests of a child directly affected—in this case Mr. Kanthasamy himself—but should also provide equitable relief. At issue in Kanthasamy was whether the decision to deny...

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Canada v Esfand: The Politics of Refugee Law

With the intensification of the Syrian crisis, refugees have been much in the news lately. Refugees also became a quasi-central issue during the earlier part of the 2015 Canadian federal election campaign. The past 9 years of Conservative government have proven transformational for Canada’s refugee and immigration system, some would argue for the worst. In Canada (Citizenship and Immigration) v Esfand, 2015 FC 1190 [Esfand], the Federal Court (“FC”) tackled the issue of cessation, which allows the government to claim that a person’s refugee status has ceased when they have “voluntarily re-availed” themselves of the protection of the country they...

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Supreme Court Denies Leave to Appeal in McAteer v Canada (AG): Oath to the Queen Continues

The Supreme Court of Canada (“SCC”) recently denied leave to appeal from the Ontario Court of Appeal (“ONCA”) decision in McAteer v Canada (Attorney General), 2014 ONCA 578. The case was a challenge to the requirement under the Citizenship Act, RSC 1985, c C-29, to swear an oath to the Queen during the Canadian citizenship ceremony. The three people who brought this challenge had different reasons for doing so, yet were united in their opposition to the oath on the basis that it violates their rights to freedom of religion and conscience, freedom of expression, and equality rights guaranteed by...

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Discrimination in Family Class Sponsorship: Attaran v Canada (Attorney General)

While there is no question that Citizenship and Immigration Canada’s (“CIC”) process for sponsoring parents to come to Canada treats applicants differently on the basis of family status, it remains to be seen if this differential treatment is justified. On February 3, 2015, the Federal Court of Appeal found that the Canadian Human Rights Commission’s (“CHRC”) decision to dismiss a complaint regarding CIC’s differential treatment of those seeking to sponsor parents and grandparents was unreasonable in Attaran v Canada (Attorney General), 2015 FCA 37.

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People Smuggling, Refugees, and Material Benefit: B010 v Canada

On February 16, 2015, the Supreme Court of Canada (“SCC”) will begin hearing oral arguments in the appeal of B010 v Canada (Minister of Citizenship and Immigration), 2013 FCA 87 [B010]. The Court will determine whether “people smuggling” under s. 37(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], requires the party accused of people smuggling receive material benefit. The SCC will also consider whether the principle of non-refoulement requires a definition of “people smuggling” that ensures a refugee’s access to the country’s refugee determination procedure.

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Refugees, Human Smuggling, and Third-Party Altruism: R v Appulonappa

On February 16, 2015, the Supreme Court of Canada (“SCC”) will hold a hearing for the appeal of R v Appulonappa, 2014 BCCA 163, a case that will have a significant impact on immigration and refugee law. The SCC’s eventual decision in Appulonappa will deeply affect both refugee claimants and those who assist asylum seekers entering Canada. The United Nations Convention relating to the Status of Refugees (the “Convention”), July 28, 1951, [1969] Can. T.S. No 6 and the Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, Can. T.S. 1969 No. 29 (the “Protocol”) set...

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Kanthasamy v Canada (Citizenship and Immigration): Is Reasonableness the Correct Standard?

The Supreme Court has recently given leave to appeal the decision in Kanthasamy v the Minister of Citizenship and Immigration, 2014 FCA 113. In that case Mr. Kanthasamy had appealed the Federal Court’s dismissal of his application for judicial review on the Minister’s denial of his application for humanitarian and compassionate relief as provided for under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. The Federal Court of Appeal heard the Kanthasamy appeal together with Lemus et al v Canada (Minister of Citizenship and Immigration), 2014 FCA 114. At issue in both cases was the...

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“Serious” Non-Political Crimes and Exclusion from Refugee Protection: Febles v Canada

In Febles v Canada (Citizenship and Immigration), 2014 SCC 68 (“Febles”) the Supreme Court of Canada (“SCC”) made an important ruling with respect to refugee claimants that possess criminal records. Article 1F(b) of the United Nations Convention relating to the Status of Refugees (“the Convention”), July 28, 1951, [1969] Can. T.S. No 6 and section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 exclude those who have committed serious non-political crimes in another country from making a claim for refugee protection in Canada. The decision in Febles clarifies how Article 1F(b) should be interpreted and applied...